As part of an overall strategy to protect children, the Western Australian State Government passed the Working with Children (Criminal Record Checking) Act 2004 (WWC Act). The WCC Act which requires employees, volunteers and business operators in child-related industries to have their criminal record assessed by the Department of Communities – Child Protection and Family Support, to determine whether that person is likely to put children at the risk of either sexual or physical harm.

What is the criminal record assessment?

Unlike a police clearance, the WWC screening unit focuses on assessing criminal convictions and charges, as well as any other relevant information. The assessment will only pick up offences to the extent that they relate to working with children. For example, conviction for shoplifting will not affect the assessment.

When completing the assessment, the WWC screening unit must consider the following:

• the best interests of the children
• when the offence was committed
• the age of the offender at the time of the offence
• the nature of the offence and its relevance to “child-related work”
• the effect of future conduct by the applicant
• information provided by the applicant and other factors considered relevant to the decision

The assessment will have access beyond that of a police clearance and can access:

• juvenile records
• charges and non-conviction charges
• spent convictions

Each state has different legislation with various exemptions and exclusions for working with children and as such, the assessment is only valid in the employee’s home state or territory.

What is child-related work?

Work is considered to be child-related work if the usual duties of the work involve or are likely involve contact with a child in connection with a number of categories listed in the WWC Act:

• a child-care service
• a community kindergarten or an educational institution for children
• a coaching or private tuition service of any kind (excluding informal, private or domestic arrangements)
• arrangements for the accommodation or care of children (excluding informal arrangements made by parents or care provided by relatives)
• foster care arrangements
• youth detention centres
• community child health, counselling and other support services
• public and private hospitals where children are ordinarily patients
• religious organisations
• sporting, cultural or recreational clubs where there is significant membership or involvement of children
• baby sitting or child-minding arrangements (excluding private and domestic arrangements)
• overnight camps for children
• transport services for children
• school crossing services
• children’s entertainment or party services
• other work as prescribed by the regulations.

Volunteers under the age of 18 and parents who volunteer in an activity in which their child is involved (other than an overnight camp) will be exempt from the working with children check.

The WWC Act is not intended to impact upon work situations requiring occasional contact with children (e.g. retail or fast food industries). Situations where a business employs children are also not affected.

What happens following the assessment?

Once the assessment is complete, a notice card will be issued to those that pass the check. The notice card will remain valid for a period of three years and is transferrable across various categories of child-related work. If there is a relevant change to a person’s criminal record, the card can be revoked.

If an individual does not pass the assessment, they will receive a Negative Notice, which prohibits them from working with children until the notice is cancelled under the WWC Act.

Someone who has received a Negative Notice is entitled to apply to have that notice reviewed. During the period of this review, they will then be issued with an Interim Negative Notice. This prohibits them from working with children pending the final decision.

Someone who has received a Negative Notice, may apply for the assessment again after three years.

Strict penalty provisions of up to $60,000 and 5 years imprisonment are in place for breaching the Act.

Employer obligations

An employer cannot employ or continue to employ someone in child-related work for more than five days unless the employee has applied for or has a current assessment notice.

An employer must not start or continue to engage someone in child-related work if that employee has a current Negative Notice or Interim Negative Notice.

Employers are also required to notify the WWC screening unit if an employee notifies them of a change to their criminal record in relation to a Class 1 or 2 Offence.

Under the WWC Act, an employer will have protection from unfair dismissal or discrimination claims if the WWC Act prevents them from employing or continuing to employ a person. While employers cannot make all job applicants obtain a WWC Check as part of the application, employers can make ongoing employment subject to a successful WWC Check.

Employee obligations

Under the WWC Act, an employee is required to apply for a WWC check when they are offered employment in child-related work. It is only possible for individuals to apply for a WWC check once they have been offered employment as the employer or volunteer organisation must sign the assessment application form.

An employee is required to notify their employer of any ‘relevant change’ in their criminal record and stop child-related work immediately if convicted of a class 1 or 2 offence.

If issued with a Negative Notice, or Interim Negative Notice, an employee must not seek employment or continue to be employed in ‘child-related work’.

Class 1 and 2 offences are outlined in the schedules to the WWC Act with the classes listed on the . The classes are listed on the website.

How much does the WWC check cost?

The cost of the assessment is:

• volunteers and unpaid workers - $11
• paid workers - $85

While the WWC Act does not specify who is responsible for this cost, if ongoing employment or placement with a volunteer organisation is subject to the employee successfully obtaining a WWC Check, it is generally reasonable for the individual to bear the cost.

Find out more at Working with Children Check or on 1800 883 979.

For more information on Working with Children Checks or child-related work, contact the CCI Employee Relations Advice Centre on (08) 9365 7660 or [email protected].